B-245569, Dec 11, 1991

B-245569, Dec 11, 1991

DIGEST: Bidder's failure to complete solicitation's Certificate of Procurement Integrity renders its bid nonresponsive since completion of the certificate imposes material legal obligations upon the bidder to which it is not otherwise bound.

Attorneys

224 Builders, Inc.:

224 Builders, Inc. protests the rejection of its bid as nonresponsive for failure to include a signed Certificate of Procurement Integrity as required by invitation for bids (IFB) No. DTCG81-91-B-3WA134, issued by the United States Department of Transportation, United States Coast Guard, for building renovations at the Coast Guard Support Center, Governors Island, New York.

We dismiss the protest.

The IFB, issued on July 18, 1991, incorporated the Certificate of Procurement Integrity Clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8, as required by FAR Sec. 3.104-10. This clause implements 41 U.S.C. Sec. 423(e)(1) (Supp. I 1989), a statute that bars agencies from awarding contracts unless a bidder or offeror certifies in writing that neither it nor its employees have any information concerning violations or possible violations of the Office of Federal Procurement Policy (OFPP) Act provisions set forth elsewhere in 41 U.S.C. Sec. 423. The activities prohibited by the OFPP Act involve soliciting or discussing post- government employment, offering or accepting a gratuity, and soliciting or disclosing proprietary or source selection information. Under FAR Sec. 52.203-8, bidders are required to complete the certificate, where indicated, by identifying the individual certifier, providing the solicitation number and the name of the offeror, listing all violations or possible violations of the OFPP Act (or entering "none" if none exists), and signing the certificate. FAR Sec. 3.104 9(b)(3) provides that for procurements using sealed bidding procedures, as here, a signed procurement integrity certification "shall be submitted by each bidder with the bid submission. ..." FAR Sec. 14.404-2(m) provides that "a bid shall be rendered nonresponsive and rejected if the bidder fails to submit the signed certificate ... with its bid."

Eighteen bids were received by the August 19 bid opening date. 224 Builders submitted the apparent low bid, but failed to submit a signed Certificate of Procurement Integrity with its bid. The protester's bid was rejected by the Coast Guard, by letter of August 21, as nonresponsive. 224 Builders filed an agency-level protest of the rejection of its bid, which the agency denied on September 4. September 9, the protester filed a protest with our Office challenging the agency's rejection of its bid.

The protester contends that its bid was improperly rejected as nonresponsive and that it was misled by the certificate's failure to provide a distinct signature line. The protester argues that since it provided information on its certificate, on the lines provided for that information, indicating the person authorized to sign the certificate and the firm's name, and since the person authorized to sign the certificate signed the firm's bid, the firm satisfied the requirement for a signed
procurement integrity certificate and is committed to perform in
accordance with the certificate's terms.

The agency contends that it properly rejected 224 Builders' bid for
failure to include a signed certificate, as required by FAR Sec. 3.104
9(b)(3), which provides that a signed procurement integrity certification
"shall be submitted by each bidder with the bid submission" for
procurements using sealed bidding procedures.
The agency asserts that the
rejection of the protester's bid is required by FAR Sec. 14.404-2(m),
which directs that "a bid shall be rendered nonresponsive and rejected if
the bidder fails to submit the signed certificate ... with its bid."
The
agency also cites a recent decision by our Office, General Kinetics, Inc.,
Cryptek Division, B-244148, Aug. 19, 1991, 91-2 CPD Para. 166, in which we
upheld an agency's rejection of a bid as nonresponsive where the bidder
failed to submit a separately signed procurement integrity certificate
with its bid, even though the bidder had completed several portions of the
certificate.

The certification's requirements obligate a named individual-- the
officer or employee of the contractor responsible for the bid-- to become
familiar with the prohibitions of the OFPP Act, and impose on the bidder
and its representative, a requirement to make full disclosure of any
possible violations of the OFPP Act, and to certify to the veracity of
that disclosure.
In addition, the signer of the certification is required
to collect similar certifications from all other individuals involved in
the preparation of bids or offers.
The certification provisions also
prescribe specific contract remedies-- including withholding of profits
from payments and terminating errant contractors for default-- not
otherwise available.
These provisions, which impose substantial legal
obligations on the contractor, are materially different from those to
which the bidders otherwise are bound; accordingly, the requirement for a
separate, signed and completed Certificate of Procurement Integrity to be
submitted with the bid submission, is a material requirement of the IFB
that affects the bid's responsiveness.
See Shifa Servs., Inc., B-242686,
May 20, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 483.
We thus have found
that a bid is properly rejected as nonresponsive for the bidder's failure
to submit a signed Certificate of Procurement Integrity with its bid, even
though the bidder signed its bid and acknowledged the amendment that added
the certification requirement to the solicitation.
Mid-East Contractors,
Inc., B-242435, Mar. 29, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 342.

The protester contends its bid is responsive and should not have been
rejected for failure to submit a signed certificate, on the sole basis
that the IFB did not provide a distinct signature line.
However, the
protester has not shown that it was misled by the omission of such a
line.
In this regard, the record shows that the protester also failed to
fill out the portion of the certificate-- where distinct lines were
provided for the requested information-- for listing violations or
possible violations of the OFPP Act or inserting the word "none" if such
is the case.
This omission suggests that the protester may have elected
not to execute the certificate.
See Inland Serv. Corp., B-242993, June
25, 1991, 91-1 CPD Para. 601 (where we found that the bidder was not
misled by the IFB's failure to provide a distinct signature line on the
procurement integrity certificate since the bidder also failed to provide
other expressly requested information-- regarding OFPP Act violations--
where distinct lines existed for that information).
Although 224
Builders' certificate identifies the individual it considers responsible
for the additional requirements imposed by the terms of the certificate,
that individual did not fully complete and sign the certificate and thus
did not establish his intention to be bound to the terms of the
certificate and, clearly, did not obligate himself to fulfilling those
requirements.
Since 224 Builders did not submit a signed, completed
certificate, the agency properly rejected 224 Builders' bid as
nonresponsive.
See Mid-East Contractors, Inc., supra.

The protest is dismissed.